Condé Nast query: What makes a rights grab?

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Condé Nast’s new boilerplate contract for freelancers, under which it acquires a free 12-month right to option dramatic and multimedia rights to articles appearing in its magazines and then, if it exercises that option, shares less than half the usual amount with the author, has gotten us thinking: what makes a rights grab? After all, there are lots of terms in a typical freelance journalism contract or book publishing contract that wouldn’t be there if the two parties had roughly equal bargaining power. (We’ll name two from trade book contracts: ebook royalties at 25% of net proceeds and any noncompete clause that isn’t reciprocal.)

So, when does a contractual term cross the line and become a rights grab? Breaking with industry practice is clearly one thing to consider. A second is whether the publisher is seeking to control rights that aren’t the main point of the contract. A third — a biggie — is compensation: is the publisher taking rights at bargain-basement rates? Another way to look at that is whether a journalist or book author with greater bargaining power would find the deal acceptable.

Condé Nast’s new boilerplate hits this trifecta with ease. Taking dramatization rights breaks with industry practice. The publisher is compensating the freelancer for his or her journalism, not for speculative movie and tv deals. And freelancers with adequate clout are reportedly avoiding the onerous new clauses entirely.

What do you think? What new contractual terms of the past decade or so would qualify as rights grabs?

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Condé Nast gets what it pays for. If it pays for first serialization rights, that’s what it gets, nothing more. If the corporation or entity chooses to exercise any other rights, that goes into the contract and it must compensate the writer—even if the topic of the investigative piece is suggested by the editor, for the approach, voice, prose, etc. is unique to every writer. As for work-for-hire articles, I think the writer gives up all claim to subrights, which these dramatic rights would fall under.

In many ways, it’s cheaper for Conde Nast to hire writers and keep them in a stable. That way they own all the rights to the created material. And the employment contract could require ownership or first look at all material created while a Conde Nast employee — and for up to two years afterward. There is no telling what the courts will let their fat lawyers get away with. Of course, they don’t mind paying each of their lawyers several million dollars a year. That represents solid value, and the lawyers have to earn their keep by rolling over on the creative force that keeps the magazines alive. Hint: that’s not now and never has been, the editorial staff. When the freelance culture dies the magazines will be history. They’re already history — they’re one step away from being a collection of brightly colored scannable links to internet pages — as Yahoo is doing with Esquire. But that’s just a transitional phase. Next year or the year after that, they won’t need printing presses for the magazines because everyone will ‘read” magazines on a tablet or smart phone. The problem for Conde Nast is that Yahoo could start ten new magazines — each a title to compete with a Conde Nast title — with no physical plant for the presses and no physical office for the editorial staff. If the content is hot, people will pay for it. But they won’t pay much.

http://www.facebook.com/maryann.sternberg Mary Ann Sternberg

Of course it’s a rights grab…but if I’m not Nora Ephron, I don’t have clout enough to argue…get printed or not get printed.
What can you do about it?

I’m a mid-list Conde Nast writer, I’ve held contributing editor spots in the past, but more than likely you’ve never heard of me. The last time that I saw a conde contract was five or six months ago and I was able to get the movie rights back after a bit of back and forth. That said, I have noticed over the last 7 years or so (when I signed my very first contract with a Conde title) that contract negotiations are much more tense than they used to be. They ask for more and more rights while at the same time cutting back on word counts. These days they still want 3-6 months of exclusivity before reprinting is possible and they pay a very low rate for optioned material for their foreign partners.

I’m a journalist, but more than that, I am also a story teller. And I view the work I do for a publication as my initial salvo to making revenue. Over the years I have made more than half my income on reprints, speaking gigs, and recently, selling movie and TV rights. If Conde Nast wants to break into that revenue stream then they simply have to pay at least twice, and more likely four or five times the basic $2-$3/word they dole out.

What makes me even more upset is that Conde Nast generally does a poor job at actually using the rights that they ask for. They have no staff who actively goes out and markets reprinted stories, their movie team waits for offers, but doesn’t drum up business on their own. Instead writers sand by the sidelines and have to wait for their chance to market their own work on the market, and more often than not we lose the opportunity to do so.

Conde Writer

Also, I’d like to add, that if you look at advertising rates for Conde Titles a single page advertisement sells for $111,000 in a magazine like Wired (http://tinyurl.com/d5bltme) or $200,000 for Vanity Fair. These rates are actually about 30% more than they ran just four or five years ago. In contrast, I might get $8-$10k for an 8-page feature, but it’s peanuts in comparison.

If anything, Conde should be paying its writers more, not less. Letting us keep theatrical rights is just human decency. Before he left as editor in chief or Wired Chris Anderson was making upward of $2 million a year. He wasn’t even in the office all that much.

Conde Nast needs a new business model. Selling paper on the street corners of America won’t work much longer. Selling ad space to cosmetics companies worked for a long time, and it will work as long as women want to be more beautiful. But the paper stuff’s probably toast. Which is too bad in some ways — if only because paper is so much less p;olluting than the electronics industry with its associated massive costs in producing not just the electronic parts but also in maintaining the eternal graveyard of old parts … somewhere in the Nevada desert.

Tdunkel

It’s coercive almost to the point of extortion. The suits at Conde Nast should be ashamed…but, of course, they’re not. The writers in their stable who have clout need to fight back and, hopefully, not just on behalf of themselves. Those writers in their stable who don’t have clout need to consider taking a principled stand. It’s a very difficult decision. But 15 years ago when publishers began seriously chipping away at writers’ copyright ownership not enough writers were willing to hang tough, which is partly why we’re in the mess we’re in today.

grizzled veteran

Lots of top writers *did* walk away from CN back then. One of my CN editors complained to me over lunch that they were having trouble finding and keeping good writers. But editorial doesn’t get to decide the policy.

Robert Bagg

Does AG contemplate working out a model contract between writers and magazines that adjudicates competing claims and interests of freelancer and corporation?

grizzled veteran

Any time a publisher takes rights without compensating the author it is a rights grab. The only power writers have is to walk away. If everyone walks away, they can’t get away with it.

Conde Nast counts on lower echelon writers taking the hit just to get into their pubs. We can upset their calculus by unilaterally refusing to sign these contracts.

I never sign a contract at all if I can help it. Then I keep all rights, by default. And if they demand my signature, I make the changes I want on the contract and initial them, then send it in.

I’ve done this for 25 years, regardless of who the publisher is, or how unknown I was. Most editors will work with you, if they can. In my experience, the editors don’t like it any better than we do. They have to do what the company lawyers tell them, but some will go to the mat on principle, if they can.

But seriously, if we don’t ALL walk away from this kind of abuse, then we deserve the abuse we get. Writing for magazines has always been potentially like being married to an abusive spouse. What you allow is what will continue.

David

I regret having fought for my rights as a free-lancer with a new and prestigious employer. If I had not done so, that employer would have given me more work–and income–than I received subsequently. This work would have given me valuable experience and prestigious exposure. After writing for them for a few years, I might have revisited contract terms without sinking my chances.

The reason I challenged a number of the contract terms is that the National Writers Union urged its members to stand in solidarity, and this made good sense to me. I didn’t reject the terms, I just asked for their reconsideration and proposed alternate wording. However, while I had a good reputation in the field (writing about electrical wiring) I lacked the stature to make them want to work with someone who might be a source of hassles. There was no hostility in the withdrawal of their offer; they just smiled, metaphorically, and sent me on my way.

A few years later, the publisher of the magazine for which I write a column asked all his columnists for additional rights. I believe that most acceded; I demurred, wanting additional compensation for anything beyond FNASR. Probably because I have a long-term following among his readers, this did not cost me my monthly check. However, it may explain why they stopped giving me informal COLAs.

If a Conde-Nast title offered me $2-3 a word to create a new feature as work-for-hire, I’d probably grab it.

grizzled veteran

That’s exactly why they can get away with it. Never never never sign a work-for-hire contract unless you do not already have a body of good clips.

If you don’t have a body of good work to stand on, then I agree, sign anything.

But that has always been true.

Mmmail1

How do you know you would have gotten more work? There’s really no way to know that. Writing about electrical wiring is a very specific, very narrow discipline, one which has likely been much reduced with the coming of the “good enough” material on the internet for free.

I doubt that movie rights would pertain to technical writing, however, in publishing repackaging (aka re-purposing) has become an cheap way of reusing material without compensating the writer. How would you feel if a publisher took a piece you wrote, repackaged it a dozen ways to Sunday, sold each bit, but paid you a small fraction of what you would have otherwise received had you sold the material directly to other media outlets?

This kind of rights grab is the problem many authors are facing. Not only does the work become distributed in channels which may devalue the work, but the author loses control of his/her own words, which can be mashed into meaning and uses for which it was never intended but for which the writer is still liable. More often than not technical publishers take material, put it into another format, sell that “new” thing as a separate work, but don’t have to pay the author for the reuse because the publisher has the rights to do with it as they will.

Ten dollars a word, maybe. Writers are paid about the same dollar rate per word as they made in the 1950s. Unfortunately, the 2013 dollars are worth about a quarter of the 1950 dollars. Magazines probably wouldn’t exist without the revenue stream from cigarette advertising. Writing for magazines — or book publishers — is a mug’s game for most of the content creators.

The rights grab impetus was first propounded by some genius level lawyer who couldn’t write his way out of a a wet paper bag, or her way out of a pair of smelly nylons. They’ll take all they can get. In this case, the magazine chain Conde Nast is asserting a co-creator’s right, that in effect makes the freelance writer a rather junior partner. Clearly, they should be adopting the all-in-house-staffers model for their creative content. Newspapers used it for years.

Susan Miller

Highlights for Children buys children’s ficton with all rights, including copyright, for about $150.